Ball v. State, 2007 OK CR 42 (November 14, 2007):  Jury Instructions; Defense Requested Instructions:  Ball was convicted by jury in Tulsa County of First Degree Murder and Child Neglect.  He was sentenced by Judge P. Thomas Thornbrugh to LWOP and Life, respectively.  Ball lived in a Tulsa apartment with his four children, the youngest of which was Keenan Taylor who was almost three-years-old.  Ball called 911 back in June, 2005, and reported that Keenan was injured.  EMSA responded and found Keenan in the apartment, severely burned.  Keenan died later that day.  Ball's story was that he had boiled some water on the stove to make some macaroni and cheese, but changed his mind.  When he took the water off the stove, the pot slipped from his hand and spilled on Keenan, who had been standing behind him.  Ball did not call for help because he was afraid he would get in trouble.  At trial, Ball did not call any witnesses and did not testify.  HELD:  1) The trial court erred by denying the defense requested instructions on Excusable Homicide and Second Degree Manslaughter.  Notably, the Court held that the trial court did not base its refusal upon a finding of insufficient evidence, but rather on the convoluted and misleading explanations of the law by the State.  However, the Court held that the instructional error was harmless(!?)  2) Also, the Court found an 85% Rule where the jury asked questions about the sentence, defense counsel requested an 85% instruction, but the trial Court refused to give it.  The case is remanded for re-sentencing.

Bell v. State, 2007 OK CR 43 (November 15, 2007):  1) DUI; 2) Prosecutorial Misconduct; Improper Argument & Improper Questions:  This is a case out of Grady County where Bell was convicted of two counts of First Degree Misdemeanor Manslaughter (DWI).  Bell was sentenced to five years on each count and Judge Richard G. Van Dyck ran them consecutively.  The notable aspects of the opinion include:  1) Overruling of State v. Breger, 1987 OK CR 98, 737 P.2d 1219, which held that DWI was properly charged as negligent homicide (Judge Van Dyck recognized the authority of Breger, but held that public policy had changed since that case was decided); 2) a finding of pervasive prosecutorial misconduct by Bret Burns and noting that the Court has twice before, in published opinions, found similar misconduct; 3) the prosecutor's use of a Power Point presentation during opening statement was erroneous because he used his own labels and captions on the photos; and 4) it was not error for the prosecutor to argue retrograde extrapolation, even though there was no scientific evidence presented on this subject, because it was fair comment on the evidence.  HELD:  Based on the prosecutorial misconduct, the sentences are modified to run concurrently.

Willard Dean Jackson v. State, No. F-2005-1285 (Okl.Cr., November 5, 2007) (unpublished):  Rule of Lenity:  Jackson was convicted by jury in Oklahoma County of Lewd or Indecent Proposal to a Child Under Sixteen, AFCF x 2.  He was sentenced to LWOP.  Jackson had made a phone call and gotten a wrong number.  However, the person who answered was a fifteen-year-old girl.  She told Jackson she was fifteen but Jackson kept talking to her and it turned sexual very quickly.  At various points during their multiple phone conversations, Jackson asked the girl if he could take photos of her nude and whether she would "finger herself" while he listened over the phone and masturbated.  These requests formed the basis of the charge for the indecent proposal.  However, the statute (21 O.S. 1123(A)(1)) is very specific and defines indecent proposal as one "for the child to have unlawful sexual relations or intercourse with any person."  HELD:  Jackson's specific acts (although lecherous and depraved) did not violate the statute.  HOWEVER, the Court held that in cases where the proof fails to convict on the crime charged, but shows conduct that is clearly criminal, the Court may direct a judgment of conviction for a crime showed by the facts.  Thus, the Court vacated the Lewd Proposal conviction, but imposed a conviction for Solicitation of a Minor to Prepare Obscene Material which carries a punishment range of 10-30.  The Court remanded for re-sentencing.  DISSENT:  Judges A. Johnson and Chapel dissented, arguing that the majority essentially convicted Jackson of a child pornography offense which is a crime with elements never charged by the State and never considered by the jury.  NOTE:  I fail to see how an appellate court can convict an accused of any crime.  This seems to be a case where the Court imposed a forbidden directed verdict of conviction and deprived Jackson of his right to a jury trial.  I hope Jackson takes his case to the federal courts where he might find some better relief.

In Re:  Application of the OBA to Amend the Rules of Professional Conduct, 2007 OK 22 (Okl., April 17, 2007):  The Oklahoma Supreme Court has overhauled the rules of professional conduct in this lengthy Order.  You should all check these out because there appears to be significant modifications to the rules.  


Tenth Circuit

United States v. Redcap, No. 07-4068 (10th Cir., November 5, 2007) (Published):  Supervised Release:  Redcap entered a guilty plea to Voluntary Manslaughter and was sentenced to 120 months followed by 36 months of supervised release.  After serving the prison time, Redcap violated the conditions of supervised release by consuming alcohol.  The District Court revoked the supervised release and sentenced Redcap to 13 months in prison and 11 months of supervised release.  This sentence was a departure from the Chapter 7 policy recommendation of 4-10 months.  Redcap objected to the sentence because he was not given notice by the District Court that it intended to "depart."  Held:  no notice is required under circuit precedent and the panel cannot overrule prior case law from another panel.

United States v. Garduno, No. 06-2317 (10th Cir., November 6, 2007) (Publish):  Appellate Jurisdiction; Guilty Pleas:  Garduno plead guilty to Involuntary Manslaughter and Assault Resulting in Serious Bodily Injury for her role in a fatal car accident.  After sentencing, she filed a motion to withdraw her plea.  The District Court denied the motion as barred by Rule 11 because it was filed after she was sentenced in open court.  AFFIRMED.  Also, Garduno tried to appeal her sentence, but filed the notice late and the Government objected.  The panel held that Fed. R. App. P. 4(b)(1)(A) and 4(b)(4) are non-jurisdictional claim processing rules; and, since the Government objected, the appeal is dismissed.

United States v. Wright, No. 06-3063 (10th Cir., November 6, 2007) (Published):  1) Conspiracy; 2) Discovery; and 3) Jurors:  Wright went to jury trial on a charge of Conspiracy to Distribute and to Possess with Intent to Distribute more than 50 Grams of Cocaine and was sentenced to 210 months.  Wright and others were basically running a crack house and the cops conducted some controlled buys and obtained a search warrant for the house.  Wright challenged the sufficiency of the evidence to prove the conspiracy.  The panel AFFIRMED, penning an opinion with a clarification of the "buyer-seller relationship" principle that applies to large conspiracies (although it did not help Wright in this case).  There is also a decent discussion about the production of the notes of the case agent after she referred to them on the stand during trial.  The panel found no Jencks Act violation and no Brady violation.  Finally, after the trial was over, the jury foreman appeared to be very upset and approached defense counsel in the hallway.  The trial judge saw this and squelched any contact pursuant to a local rule prohibiting counsel from contacting jurors without court approval.  The trial judge met with the juror in chambers and subsequent denied the defense motion to contact the juror on the basis that it would not lead to any evidence admissible under Rule 606(b).  The spineless panel held this was not an abuse of discretion, noting somewhat cattily that defense counsel did not request a record to be made of the judge's interview.


United States Supreme Court

Allen v. Siebert, No. 06-1680 (U.S., November 5, 2007) (per curiam):  The Court shores up its holding in Pace:  "When a post-conviction petition is untimely under state law, that is the end of the matter for purposes" of ADEPA's one-year statute of limitations.  Allen involved a somewhat different aspect of this issue because the Alabama time limit for postconviction is an affirmative defense that can be raised by the state (or is subject to equitable tolling), not a jurisdictional component of the claim.  The Supreme Court held that it does not matter.  If the application is untimely then it is not filed properly for tolling purposes.

Miscellaneous: 

If you are interested in the Kennedy v. Louisiana case (death penalty for child rape), the State's brief in opposition to certiorari can be found HERE.  The brief of the NACDL as amicus curiae can be found HERE.

Concerning the lethal injection litigation, the merits brief on behalf of the Petitioners in Baze v. Rees, can be found HERE.

Also, the Court stayed the execution of a Florida death row inmate on the lethal injection issue.  The inmate was Mark Dean Schwab, the same Schwab in the district court opinion below.  It seems the litigation went upward from the district court.


Other Cases of Note

Schwab v. McDonough, No. 6:07-cv-1798-Orl-22KRS (M.D. Fla., November 14, 2007):  Death Penalty; Stay of Execution:  U.S. District Judge Anne C. Conway GRANTED the stay application of a Florida death row inmate pending the Supreme Court's consideration of Baze.

Billips v. Virginia, No. 062180 (Va., November 2, 2007): Penile Plethysmograph:  The Court considered this question:  the admissibility of opinion evidence based upon plethysmograph testing at a sentencing hearing.  HELD:  the Commonwealth failed to present evidence that the test is reliable.

United States v. Garner, No. 06-3288 (6th Cir., November 7, 2007):  Prosecutorial Misconduct; Brady Issues:  Split, 2-1 opinion reversing the denial of a motion for new trial on the basis of a Brady violation when the Government did not turn over cell phone records that would have provided a basis for Garner to present a defense.

United States v. Shellef, No. 06-1495 (2nd Cir., November 9, 2007):  Joinder:  Convictions for Wire Fraud, Money Laundering, Tax Evasion, Filing False Tax Returns, and Conspiracy to Defraud the IRS are reversed on the basis that the Indictment joined improperly certain tax counts with the other charges, joined improperly two defendants, and that this mis-joinder was not harmless.


OCDLA AWARDS

The annual meeting of the Oklahoma Criminal Defense Lawyers Association was held on Thursday, November 8, 2007, in Oklahoma City.  The guest speaker was the engaging Christopher Adams, who held a very controversial position as the Georgia Public Defender in capital cases before resigning amid a funding controversy.

AWARDS:

The Lord Thomas Erskine Award:

The winner of the Lord Thomas Erskine Award was JACK POINTER, OKC.  This award recognizes the cumulative efforts of a criminal defense lawyer and is the most prestigious award given by the OCDLA.  Jack is a true warrior for the defense and well-deserving of the award.

The Thurgood Marshall Appellate Advocacy Award:

The Thurgood Marshall Appellate Advocacy Award was presented to co-winners PAULA ALFRED, Tulsa Co. P.D., and KATRINA CONRAD-LEGLER, OIDS in Norman.  Both Paula and Katrina had significant wins in the Court of Criminal Appeals and we felt that both were equally deserving of this award.

The Clarence Darrow Award:

NO ONE was presented with the Clarence Darrow Award for trial work!  This was very surprising since I was under the impression that there were some good trial victories within the last year.  However, OCDLA did not receive a single nomination for this award, which I think is very unusual.  Please remember that no one can be considered unless they are nominated!

The President's Award:

OCDLA President David Ogle honored STEVE PRESSON & ROBERT JACKSON, Norman, for their solid dedication to criminal defense work over the years.  In fact, they did the appeal in the Willard Jackson case featured in this issue!

Finally, the membership present elected ANDREA MILLER as the new OCDLA President.  OCDW presents a special thanks to David Ogle, outgoing President for his good leadership and also welcomes Andrea to the helm.       


Victories

"Send lawyers, guns and money, the shit has hit the fan."
--Warren Zevon, "Lawyers, Guns and Money" (song) (1978)


BRIAN HERMANSON, Ponca City, won a NG for a client on charges of Conspiracy to Distribute CDS and Felony Murder (Death caused by Distribution of CDS when a woman died at a hotel of an overdose during the alleged Distribution).  This was actually the second go-round since the first trial ended in a mis-trial.  Another good win for Brian! 

STEVE M. PRESSON & ROBERT M. JACKSON, Norman, scored a nice appellate win for the "lecherous" Willard Jackson who, although he must be re-sentenced on a lesser charge, escaped the dreaded LWOP that the jury gave originally.  Superb work, Steve and Robert!

STUART SOUTHERLAND, Tulsa Co. P.D., won a re-sentencing on appeal for Carlis Anthony Ball.  Another good appellate victory for Stuart!



Hearsay

OKLAHOMA DUI DEFENSE:  THE LAW & PRACTICE:  This new book is authored by criminal defense attorneys Bruce Edge and John Hunsucker with assistance from James Nesci.  The book also comes with a CD and covers a myriad of topics related to DUI defense in Oklahoma.  Perhaps Bruce or John will send a copy to me for a proper review!  You can order your copy from Lawyers and Judges Publishing, P.O. Box 30040, Tucson, AZ  85751-0040, or contact them by phone 1.800.209.7109, fax 1.800.330.8795, e-mail sales@lawyersandjudgescom, or the web site at www.lawyersandjudges.com.  The ISBN number is 1933264292.

NATIONAL ARSON REGISTRY?:  Not yet.  But, Rep. Mary Bono, R-Palm Springs, wants to create a national database of arsonists, similar to the ones used currently to track and monitor sex offenders.  The wildfires in California are the cause of this legislative insanity. 

SEX OFFENDER DRIVERS LICENSE:  One little tidbit that you should bring to the attention of your clients charged with sex offenses is that, if they are convicted, DPS will issue them a drivers license marked with the words "Sex Offender" in three places.  A sample license is shown on the web site.  Also, licenses issued to non-citizens will be marked with a big, red TEMPORARY stamp across the license.



                      ------LEGAL CALENDAR------

TUESDAY, JANUARY 8, 2007:  OIDS is sponsoring a seminar from 1:00 p.m. to 5:00 p.m. in Room 104 of the State Capitol Building.  The seminar will focus on the use of the ABA Guidelines in capital cases and the importance of mitigation evidence.  Presenters include Robin Maher, Director of the Death Penalty Representation Project, and Russ Stetler, an experience capital case litigator.  OIDS is in the process of obtaining CLE approval.  A registration form will be available on the OIDS web site.




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